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TMI Blog2015 (5) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... nd conditions of the said LOP the appellants were inter alia required to : (i) export their entire production (excluding rejects not exceeding 5%) to GCA/Hard Currency area for a period of 10 years and achieve the target of export worth Rs. 1380.46 lakh, during the period of 5 years after commencing production; (ii) achieve minimum value addition (VA/NEEP) not less than 90%; (iii) carry out entire production activity in customs bonded area; (iv) follow the conditions specified in the customs notifications under which capital goods, raw materials and components for production under the scheme, were to be imported duty free; (v) follow the conditions specified in the central excise notifications under which capital goods, components, raw materials for production under the scheme, were to be procured indigenously duty free; and (vi) to pay all penalties, customs and excise duties and such other amounts as may be decided by the Government, in case they fail to fulfil their export obligation and other obligations under this scheme. In terms of the above LOP the appellants procured capital goods, components, raw materials etc. duty free under Notification No. 136/94-CX dated 10.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Appellate Committee of Commerce and Industry to Rs. 50,000/- and therefore penalising them again vide the impugned order would amount to punishing them twice for the same offence. (v) duty cannot be demanded on mother plants of flowers (treated as capital goods) as they were consumed/destroyed in the EOU. (vi) their actual exports including deemed exports were to the tune of Rs. 2.19 cores as against Rs. 98.02 lakhs stated by the adjudicating authority; (vii) they were issued a Show Cause Notice on 13.9.2001 demanding duty of Rs. 26,14,587/- on DTA clearances which demand was dropped vide order in original dated 26.8.2004 and the second Show Cause Notice dated 31.7.2007 was issued after their LOP was cancelled and that they on their own, on receipt of the said Show Cause Notice, computed the duty liability in respect of imported/indigenous goods procured without payment of duty and paid the same on their depreciated value on 7.12.2007. (viii) the Commissioner was not legally justified in confirming duty as applicable to the duty free procured goods at the time of import/domestic procurement ignoring the fact that the goods on which duty was being confirmed were old and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h extended period as may be specified by the board. The appellants evidently violated the said condition (No. 7)) of the exemption Notification No. 136/94-CE inasmuch as they were required to export 100% of articles (excluding rejects) manufactured wholly or partly from the goods procured duty free but they admittedly did not do so. Consequently, the appellants were disentitled for the exemption under the said notification (No. 136/94-CE). It is a settled principle that when exemption is subject to certain conditions the same has to be denied if any of the conditions is not fulfilled. In the case of Indian Oil Corporation Vs. CCE Vadodara 2012-TIOL-04-SC-CX., it has been held that in the case of conditional exemptions, the conditions of exemption have to be construed strictly and if the exemption is available only on complying certain conditions, the conditions have to be complied with. 7. The appellants referred to the judgement of Khabros Steel India Ltd. Vs. CCE, Jaipur 2006 (194) ELT 117 (Tri.-Del.) to argue that in the case of debonding the duty is to be paid on the depreciated value at the rate in force at the time of payment of such excise duty. They also referred to the CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction over his unit, certifying receipt of the said goods in the unit as having been entered in the records prescribed for this purpose. (b) to fulfil the Export obligation and comply with the conditions stipulated in this notification and Export and Import Policy, and to pay on demand an amount equal to the duty leviable on the goods and interest at the rate of 20% pr annum on the said duty from the date of duty free importation or procurement of the said goods till the date of payment of such duty. As per the LOP, the appellants had inter alia the following export obligation: (i) The entire (100% production shall be exported to General Currency Area Countries/Hard Currency Area Countries. (ii) To export the entire production (100%) excluding rejects not exceeding 5 (five) percent for a period of 10 (ten) years. (iii) The value addition shall be a minimum of 90% as per new formula in force w.e.f 1.4.93. As has been discussed earlier, the appellants did not fulfil their export obligation and thereby violated the condition of the exemption Notification No. 126/1994-Cus. which makes them ineligible for the said exemption notification. As a consequence the Customs d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to confiscation as they were cleared duty free under Notification No. 126/94-Cus. but the condition of exemption was not fulfilled by them. 12. The appellants have also argued that Rule 173Q is not applicable in the case of EOUs. We have perused the provisions of Rule 173Q and we do not find any disability in the said Rule which makes it inapplicable to 100% EOU. Similarly their contention that the adjudicating authority has not mentioned Sub-Rule to Rule 25 of Central Excise Rules, 2002 is not of much avail as the said Rule contains Sub-Rule (1) and Sub-Rule (2) and Sub-Rule (2) only states that An order Sub-Rule (1) shall be issued by Central Excise officer following the principles of natural justice . Thus non intention of Sub Rule of Rule 25 ibid has in no way prejudiced the appellants. 13. The appellants contention of double jeopardy on the ground that they have already been penalised under the FTDR Act, 1992 is totally invalid as the ingredients of offences under the FTDR Act and the Customs Act, 1962/Central Excise Act, 1944 are different. This issue is rather too well settled to require parading of familiar judicial pronouncements but for the sake of illustration the j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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